Use of Force & Arrest · §22.01

Assault

Assault includes (1) intentionally/knowingly/recklessly causing bodily injury, (2) intentionally/knowingly threatening another with imminent bodily injury, or (3) intentionally/knowingly causing physical contact known/reasonably believed to be regarded as offensive or provocative. Family-violence and public-servant enhancements apply.

To prove this offense, the State must establish each of the following elements: No single statewide statutory ban on all neck restraints; Most large agencies restrict to deadly-force-justified scenarios; TCOLE-required training increasingly emphasizes alternatives; §22.01(b)(2)(B) reflects lethality recognition.

The base classification is Class A misdemeanor (default; bodily injury), with possible enhancements depending on the conduct, victim, location, or prior history of the actor.

Elements you must prove

No single statewide statutory ban on all neck restraints
Most large agencies restrict to deadly-force-justified scenarios
TCOLE-required training increasingly emphasizes alternatives
§22.01(b)(2)(B) reflects lethality recognition

Texas Law — Charge Details

Class C → 1st Degree Felony

Offense

Assault

Statute

Tex. Penal Code §22.01

Classification

Class A misdemeanor (default; bodily injury)

Potential Penalty Enhancements

If this condition applies…	Charge escalates to	Statute
Against public servant lawfully discharging duty	3rd degree felony	§22.01(b)(1)
Family violence + prior §22.01 / §25.07 / §25.072 conviction	3rd degree felony	§22.01(b)(2)(A)
Family violence by impeding breath/circulation (strangulation)	3rd degree felony	§22.01(b)(2)(B)
Strangulation + prior §22.01 FV-type	2nd degree felony	§22.01(b-3)
Threat or contact against elderly/disabled	Class A misdemeanor	§22.01(c)

Practice 2 questions on this topic

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Worked examples

Worked example 1

Restrictions on choke holds / neck restraints in Texas departments are typically governed by:

No restrictions
Agency policy — many Texas agencies have prohibited or sharply restricted neck restraints (vascular and respiratory) absent deadly-force justification, in part following federal trends after George Floyd; Texas has not enacted a single statewide statutory ban on all neck restraints, but §22.01(b)(2)(B) recognizes the lethality of impeding breath/circulation Correct
Federal statute prohibits all uses
Required in every arrest

Why: Texas has not adopted a single statewide statutory prohibition on all neck restraints. Many large departments (DPS, Houston, Dallas, Austin, San Antonio) have policies sharply restricting neck restraints to deadly-force-justified scenarios. The Penal Code's strangulation-FV felony (§22.01(b)(2)(B)) reflects the lethality of breath/circulation impedance.

Statute: Agency policy; Tex. Penal Code §22.01(b)(2)(B); TCOLE training

Worked example 2

SCENARIO. A suspect is in handcuffs and not resisting. An officer kicks him. Apply Texas / federal law.

Lawful — suspect must be punished
Unlawful — gratuitous force on a restrained, non-resisting subject is excessive force under Graham (no immediate threat, no active resistance, no severity-of-crime justification once secured); criminal liability under §22.01 (assault), and §1983 civil liability likely Correct
Lawful if the suspect spits
Lawful with backup approval

Why: Force on a handcuffed, non-resisting subject is well outside the Graham factors and is gratuitous. It exposes the officer to criminal liability (assault on a person under custody, official oppression) and civil §1983 liability.

Statute: Graham v. Connor; Tex. Penal Code §22.01(b)(1)

Statutory definitions for this topic

Imminent Tex. Penal Code §9.32 (deadly force) / §22.01 (assault): Near at hand; threatening to occur immediately; on the point of happening. The threat must be present, not merely possible at some future time.